Out of Control Policy Blog

VA Supremes Strike Down Loudoun's Slow Growth Law

On Thursday, the Virginia Supreme Court struck down much of Loudoun County's 2003 zoning rewrite that had practically shut down 2/3 of the county (about 300 sq. miles) to homebuilding.

According to the WaPo:

    "The Virginia Supreme Court yesterday threw out Loudoun County's slow-growth regulations that had blocked home building on vast swaths of open space in the nation's fastest-growing county. The ruling on scores of challenges filed two years ago by property owners, developers and others opens the western part of the county to new growth. More than 50,000 additional houses could now be built in an area formerly closed to massive development.

    . . . .

    The Supreme Court did what some on the pro-development majority on Loudoun's Board of Supervisors have wanted to do since taking power last year. Supervisors who have long slammed the controls as an infringement on property rights appeared delighted with the court's ruling, and there was no indication yesterday that it would be appealed or that Loudoun officials would try to reinstate the regulations.

    . . . .

    The slow-growth push by supervisors on a previous board helped turn Loudoun into a closely watched test case in the national struggle over property rights and the environment. With its proximity to the nation's capital, its fastest-growing designation by the Census Bureau and tens of billions of construction dollars at stake, Loudoun's development debate has transcended the ordinary dust-ups over spreading U.S. suburbs."

For context, Loudoun sits about 25 miles west of DC and has been the fastest growing county in the US for years. It became a national posterboy for smart growth in the 90s, which generated a great deal of well-funded, vocal opposition among citizens and property rights folks. Growth has been THE #1 issue in the county for years, and as such is a primary driver in county politics. The current Board of Supervisors tilts pro-growth and were elected in part in a backlash against the extreme slow growth bent of the previous Board, who passed the regulations struck down Thursday.

Much of the growth over the last decade has been on the eastern side of the county, in the vicinity of Dulles Airport and several booming tech corridors. The other 2/3 of the county was massively downzoned in 2003 to slow (strangle, really) growth, with mandated minimum lot sizes jumping from 3 acres per home to a whopping 10, 20 or even 50 acres depending on location and development type. The Court struck down these density restrictions, as well as mandates for conservation subdivision design.

But this can't really be spun as a moral victory, as the Court's decision was based on a procedural technicality related to public notice for hearings. For the property rights side, this probably feels like winning a tied football game in the final seconds after a questionable pass interference call moves the ball within easy field goal range. Not a glorious victory, but hey, it still goes in the W column.

The good news is that the current Board of Supervisors is not likely to try to pursue the reinstatement of those same regulations again, with lot size requirements likely to settle somewhere in the 3-8 acre range. Of course, we at Reason would generally rather see market-driven--not mandated--densities, but just about anything would be an improvement in this situation.

Here's another take from the Loudoun Times Mirror. A reader responds to this article that:

    "The reason these provisions were voided was because the court found that the average citizen couldn't tell from the notices the scope of the revisions under discussion, the scope of the impact to their property if adopted, or in some cases whether or not their property would be impacted. This means that the much-touted citizen input probably didn't include a number of citizens who didn't realize that they SHOULD participate. I read the documents of the decision, and it included a wonderful sentence that puts it in perspective, to the effect that a citizen shouldn't have to have a legal degree to tell what a public notice says."

Kudos to this reader. Governments (and lawyers) tend to make the public hearing process so arcane and unintelligible to the average citizen that most just choose to sit on the sidelines, unaware of even the most basic goings-on with regard to local land use and zoning, much less the implications of long range plans, subdivision and development codes, etc. I doubt that there's much of a "solution" to this state of affairs, as Americans definitely have the right not to engage in the community sphere. But government still has an obligation to make things as clear and transparent as possible.

On a personal note...I grew up in Leesburg, the seat of Loudoun County, and I have so many fond memories of aimlessly cruising the rural roads in bucolic, western Loudoun. Field parties around a bonfire a half-mile away from the nearest house were a particularly exhilarating experience that today's Loudoun kids may not get to replicate (probably not a bad thing from a parent's perspective, actually). The thought of subdivisions cropping up in what at the time seemed to me to be secret, uncharted places still brings a bit of a lump to my throat.

But as a kid, the languages of economics and planning were still foreign, so it felt like a raw, emotional sucker punch to see new homes spring up on what seemed like sacred space. But having become wiser to the world, it packs the same punch now to see private property rights trampled and families pushed further away from this wonderful area because they've been priced out by land rationing.

And I now realize that those secret, uncharted places didn't exist outside of my own mind...in reality, they were pieces of land owned by someone and were uncharted only in the sense of their future potential.

It's too bad that so many adults still view their communities with the child's mindset.

Leonard Gilroy is Director of Government Reform


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